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'Department of Medical Jurisprudence.

EXPERT TESTIMONY.

At the meeting of the Medico-Legal Society of Chicago, held December 1st, 1888, the attention of the society was given to the consideration of a suit for malpractice in which one of the members of the society had recently been a successful defendant.

We do not care to report the meeting, nor the case considered; but the following extracts will be of interest:

Dr. F. C. Hotz said: "From a medical point of view I think we may disagree with some applications Dr. G. made, but I am sure on the whole the case was managed well. We all have cur individual views in regard to treating a case: I may use one medicine and another person another medicine for the same purpose, but that does not make the other treatment unjustifiable. We are none of us infallible; one may use corrosive sublimate and another something else, for conjunctivitis; and if one makes a mild application of nitrate of silver (5 grains to the ounce), and my views are opposed to the use of nitrate of silver, I should not be justified to condemn the treatment of the other as long as the majority of oculists consider it a valuable.remedy.

But this meeting. I believe, was called for the purpose of bringing out the medico-legal aspects of the case. There was one point that interested me. I was surprised by being informed by the court that whatever occurs at a consultation is

not a privileged communication; that we are obliged to give a full statement of whatever the doctor who has called us in consultation said, and what our answer was. That was surprising to me as I thought such matters were confidential.

"I should like to hear from legal lights present how it is that the statements of the client to the lawyer are considered privileged, while those of a patient to his physician or of one physician to another are not, and the physician may be forced on the stand to give away that confidential statement if he is called as a witness. This may place the consultant in an awkward position. For, as I said before, medical men may disagrec in regard to a certain application and so express themselves to each other without intending to condemn the treatment of the brother physician or to make it appear in any way wrong; while the same remarks repeated on the stand before a jury of laymen may prejudice the case considerably against the defendant.

"Another medico-legal point is this: I became thoroughly convinced of the utter uselessness of expert testimony. All it can do is to muddle the heads of the jury. The expert is not allowed to give his opinion upon the merits of the case, from a medical point of view. Oh, no, that is for the jury to decide. He is given a hypothetical case. Those of you who have been there and heard all that was put in a hypothetical case by the one side first, and then by the other side, will certainly agree that it is the easiest thing in the world to prove anything with these hypothetical cases. The prosecution will put it in the strongest way against the defense. They make it appear that the doctor has been as cruel as a butcher at the stockyards, handling the poor woman worse than an animal, and showing ignorance in everything; they put all this into a hypothetical case to the expert, and of course he has to answer that such treatment is all wrong. Then comes the defense and puts another hypothetical case. In the light of their evidence of course the expert will say, he could not treat it any differently that was elegantly done.' And there sit the twelve wise men, unfamiliar with medical technicalities, and they are to form an opinion out of this chaos of hypothetical cases

"I am sure no jury has ever gone into the jury room and paid any attention to the expert evidence in the case. The best illustration of the uselessness of expert evidence was furnished by the case of Dr. B. two years ago, where the prosecution was smart enough not to call any experts at all, and the doctor made the mistake of calling in a great many. The prosecuting lawyer, pointing to the mountain of expert evidence said: 'What does it amount to; the doctors all stick together;' and 'made it clear to the jury that every doctor went on the stand for the express purpose of perjuring himself in order to protect the defendant; and that made such a deep impression on the jury that in spite of all the expert evidence brought forward for the defense, the jury gave a verdict of $4,500 against Dr. B. I think expert evidence is of no use before a jury."

Judge Oliver H. Horton: "I had not the slightest idea of participating in the discussion this evening. I came to learn. As the case is presented here, I see very little in the nature of law points; it was simply a question of fact. Was the Doctor's treatment proper or improper? Almost absolutely a question of fact. The mode of handling it is a question of the capacity, ability and experience of the lawyer. The mode of presenting these facts, whether admitted upon one side or exaggerated upon the other, is not a question of law but of the practice of particular attorneys.

With regard to the question of privileged communications: It is not a privilege that applies to the lawyer but to the client, and the lawyer cannot claim the privilege. That is upon the theory, as I understand it, as distinguished from the rule applied to medical men and religions confessors, that if it were otherwise the client could not present to the lawyer, fully and fairly not only the strength but the weak points of his case if his statement of them was to be brought as evidence against him; otherwise he could not go fairly into the case; he could not have full consultation with his counsel. But in the case of the physician it is not that he is consulted with regard to a particular lawsuit, where he has to state the things that are against him as well as for him-if he is a judicious client he will aways state the things against him so the lawyer can pre

pare for it but it is the statement of facts without regard to whether it is to result in a lawsuit, and the theory is that the facts as they occur at the time, without thought or preparation for a lawsuit, ought not to harm anybody. I suppose that would be a sufficient distinction, or reason for the difference.

"As to expert testimony, I do not think as a rule that lawyers have the highest appreciation of or place the highest value upon it.

"In the matter to which Dr. Hotz referred, of hypothetical questions as being so misleading to laymen-in any profession, for instance in your profession, to a jury who are utterly inexperienced, a hypothetical question is so misleading as to oftentimes result in injustice, but until, somebody is sagacious enough to give us a better mode I know of no way to stop the present. "Counsel for the plaintiff cannot be required to put a hypothetical question upon the defendant's case, but a suggestion from the doctor, it seems to me, would be very valuable. Instead of putting a hypothetical case, where the doctor had seen and examined the patient, the question should be, You saw the patient, what is your judgment?' and I think the question would have influence, from the doctor as an expert. 'When you saw this case, what was your opinion as to the defendant's treatment?' That, however, is not a legal aspect of this particular case, but only the mode of trying it by the lawyers; it is not in the law but in the mode of trying the case. I think the gentleman spoke here, if I caught the name correctly, who treated the case following Dr. Gradle's treatment. He could speak from what he saw. You saw the patient, what is your judgment from seeing her?' not from the hypothetical question. But if he had not seen the patient, how are you going to ask him his opinion as an expert? In no mode that I know of except in a hypothetical case. Presumably the hypothetical question states the case as presented by the evidence. If it does not the question is erroneous, but if it states the facts in the hypothetical question as developed in the evidence, then it is proper, and how else will you get the opinion of experts who have not seen the case?"

Dr. Hotz: "My point is, not that the hypothetical case is

put by the prosecuting lawyer on the evidence of the prosecution alone, but that it is so one sided. It is put on the evidence so far as presented, that is true, but the defendant's-for instance, Dr. Gradle's statement, was not in the evidence when they put the hypothetical question. It is true it was presented on the evidence, but it was so one sided that it did not make a

case.

Judge Horton: "If it was a jury of experts that could see the weakness of that it ought not to do much harm. But if it is not a correct statement of the evidence, and the question be objected to, the objection would be sustained. If it was a correct putting of the one side before the evidence of the defendant had appeared, then an expert witness who had had some experience, and saw how it would come out on the other side presently, would say, 'If your supposed case comes out on the evidence then my views would be so and so, but if other facts enter into the question my judgment might be entirely different.' Another thing I have observed somewhat as a rule, that the lawyer is seriously at a disadvantage when examining an expert where he is not thoroughly conversant with the subject himself, for the expert in nine cases out of ten will down him. Unless he is thoroughly posted, crammed for that particular case, if you please, he is apt to come out second best.

"I think the case you stated to-night is a good illustration of the fact that expert testimony often does more harm than good. It is a good deal in the general view of the jury, like a case against a corporation. Expert testimony does not weigh as a rule. It is my belief that I could take medical experts and prove that any man in America was insane, and I ask you doctors if that is not pretty nearly true? And if that is true, how can you expect it to have weight against the truth, for we all know there are some sane people in America. The thought is in the air and it has an effect upon expert testimony of all kinds."

Dr. Hotz: "I would like to ask if it is the fault of the expert testmony or the fault of the lawyer in not being able to bring it out?"

Dr. Henry Gradle: "What Dr. Hotz said concerning ex

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